CC BY
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Литература
1. Кодекс РФ об административных правонарушениях от 30.12.2001 N 195-ФЗ ( в ред.от 21.07.2014// Консультант Плюс: URL: http://www.consultant.ru.
2. Гражданский кодекс Российской Федерации (часть первая)" от 30.11.1994 N 51-ФЗ (в ред. от 05.05.2014)// Консультант Плюс. URL: http://www.consultant.ru.
3. Положение о применении Инструкции Банка России и ГТК России "О порядке осуществления валютного контроля за поступлением в Российскую Федерацию выручки от экспорта товаров" от 13.10.1999 N 86-И и N 01-23/26541 (соответственно), утв. ЦБ РФ N 101-П, ГТК РФ N 01-23/32005 22.12.1999// Консультант Плюс: URL: http://www.consultant.ru.
4. Панов А.Б. Некоторые вопросы порядка привлечения к административной ответственности как путь к эффективности и справедливости // Право. Журнал НИУ-ВШЭ. 2011. № 4.- 0,75 п.л.
References
1. Kodeks RF ob administrativnyh pravonarushenijah ot 30.12.2001 N 195-FZ ( v red.ot 21.07.2014// Konsul'tant Pljus: URL: http://www.consultant.ru.
2. Grazhdanskij kodeks Rossijskoj Federacii (chast' pervaja)" ot 30.11.1994 N 51-FZ (v red. ot 05.05.2014)// Konsul'tant Pljus. URL: http://www.consultant.ru.
3. Polozhenie o primenenii Instrukcii Banka Rossii i GTK Rossii "O porjadke osushhestvlenija valjutnogo kontrolja za postupleniem v Rossijskuju Federaciju vyruchki ot jeksporta tovarov" ot 13.10.1999 N 86-I i N 01-23/26541 (sootvetstvenno), utv. CB RF N 101-P, GTK RF N 01-23/32005 22.12.1999// Konsul'tant Pljus: URL: http://www.consultant.ru.
4. Panov A.B. Nekotorye voprosy porjadka privlechenija k administrativnoj otvetstvennosti kak put' k jeffektivnosti i spravedlivosti // Pravo. Zhurnal NIU-VShJe. 2011. № 4.- 0,75 p.l.
Jovasevic,D.\ Ilievski,A.2, Aleksic,S.3 Ugrinovska,E.4
'PhD of law, 2Prof. PhD of law, 3Master, 4Master,
'Faculty of law, University of Nis, Republic of Serbia 2ISU “G.R.Derzavin”- Sv.Nikole, R.Macedonia, 3Attorney of Nis, 4National
Examination Center, R.Macedonia
THE CRIME AGAINST HUMANITY IN INTERNATIONAL LAW AND SERBIAN CRIMINAL LAW
Abstract
When the Roman Statute ofpermanent International Criminal Court came into force in the middle of2002, a new branch ofpenal law -international criminal law - has finally been constituted. It is a system of legal regulations contained within the documents of the international community and national legislations which determine the concept and characteristics of international criminal offences, the system of penal responsibility and penalties, as well as the bodies and procedures to pronounce penalties to perpetrators of the most serious crimes against peace and international security. This finally brings into life centuries long idea of establishing universal criminal justice, or justice superior to national ones, which would pronounce penalties for breaches of international rules of conduct of states and individuals. In legislation, theory and practice, this term can be interpreted in the broader sense, as well. In this paper the author has analyzed theoretical and practical aspects of crime against humanity in international criminal law and new criminal law of Republic of Serbia (former FR Yugoslavia).
Keywords: international security, international law, crime, humanity, liability, penalty.
Basic characteristics of crimes against international law
International criminal law, as a system of legal regulations found in acts of the international community and criminal legislations of individual states, establishes criminal liability and punishments for crimes against international law. These acts represent breaches of the laws and customs of war (international humanitarian law) that violate or threaten peace among nations and the security of mankind. Penalties prescribed for these criminal offences stand for the most severe penalties in contemporary criminal legislation. In some cases, international judiciary (supranational) institutions such as The Nurnberg and The Tokyo Tribunal, The Hague Tribunal, The Rome Court etc. have primary jurisdiction over perpetrators of these criminal offences.
Crime against humanity, defined in paragraph 371. of The New Criminal Code of the Republic of Serbia (2005), represents a newly introduced criminal offence32 whose establishment is related to the Statute of The International Military Tribunal from 1945 and the Nurnberg Judgment. It is a serious crime against international law that threatens characteristic values of the entire mankind, or values that are considered as generally humane. The development of the concept of crime against humanity was predominantly influenced by the idea of the need to protect fundamental human rights and freedoms. Crime against humanity (crimen iuris gentium) is based upon violations of fundamental laws of humanity, i.e. each person’s right to life and the right of each ethnical group to exist as such.
In the legal system of the Republic of Serbia, crimes against international law are enumerated in the Chapter Thirty Four of The Criminal Code from 200533., entitled “Criminal Offences against Humanity and Other Rights Guaranteed by International Law”. These criminal offences actually represent acts that constitute violations of international treaties, agreements and conventions and threaten and entrench on peace among nations, the security of mankind and other values protected by the international law or are in breach of the rules of war related to the treatment of war prisoners, wounded, sick and civilians by the parties to the conflict.
The origination of these criminal offences is related to the establishment of international rules organizing relations between states in time of war and relations between the parties to the conflict in view of commencement and conduction of armed conflict. International law of war emerged as the consequence of cruel and inhumane comportment throughout the long history of wars and armed conflicts between nations and states, with the intention to humanize this most inhumane means of resolving international and inter-state disputes34.
Along with the expansion of the international law of war, started the process of gradual limitation of the rights belonging to the parties to the conflict, and of controlling not only the acts committed against non-combatants, but those related to the commencement and conduction of war as well. State’s right of absolute freedom to commence and conduct a war will gradually be reduced by prohibiting certain acts that include unnecessary devastation, killing and torture. Breaches of the laws and customs of war constitute crimes under the laws of war. Having accepted international obligations by signing and ratifying numerous international conventions, certain states included several criminal offences against humanity and other rights guaranteed by international law in their criminal legislation. Such criminal
32 Previous absence of this incrimination has been justified by the fact that it has been covered by the crime of genocide, but contemporary practice related to the civil war on the territory of former Yugoslavia indicated that some crimes against the civilian population cannot be treated as genocide since not being aimed to destroy, in whole or in part, a national, racial, religious or ethnical group, whereas the time of their perpetration does not allow them to be considered as war crimes against the civilian population. .
33 Official gazette of the Republic of Serbia No : 85/2005, 88/2005, 107/2005, 72/2009 and 111/2009.
34 D.Jovasevic, Leksikon krivicnog prava, Beograd, 2011. p. 345.
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offences are committed by violating rules contained in international conventions. Their source lays in the prohibitions proclaimed in international legal documents (acts)35.
Subject of protection under international criminal law consists of humanity and other universally recognized and generally accepted values protected by international law. The protection of humanity pertains to the protection of essential human rights such as: life, physical integrity, honor, reputation and personal dignity and other fundamental human rights and freedoms. Additional rights belonging to natural persons, individual states and the entire international community are also of general, universal significance and therefore protected and guaranteed by international law.
The majority of crimes against the international law can be committed only in a certain period of time determined by the law : 1) during war, 2) armed conflict or 3) occupation. These criminal offences are most commonly committed in an organized manner with the aim to implement certain governing group’s or party’s politics. Being considered as an aspect of organized, planned criminality, these offences are most frequently committed by the order of superior military or political leaders. Due to that, it is required to determine individual criminal responsibility of organizer, order-giver and offender.
These criminal offences can be committed only by premeditation. Some of the criminal offences contained in this group are not subject to limitations on criminal prosecution and limitations on enforcement of penalty: genocide, crime against humanity, war crimes and other criminal offences that pursuant to ratified international treaties cannot be subject to limitations. The theory of international criminal law recognizes several sorts of crimes against international law. They are most commonly divided into two categories: 1) crimes against international law in the narrow sense (genuine or pure crimes against international law) and 2) crimes against international law in the broader sense, or transnational crimes (counterfeit or mixed).
This classification was adopted for the first time at the 14th Congress of The International Criminal Law Association that took part in Vienna in 1989. The criterion of the division is the jurisdiction of international criminal courts, which is established only in the case of crimes against international law in the narrow sense. Crimes against international law in the narrow sense belong to the first group of these criminal acts. These crimes against international law represent violations of laws and customs of war (meaning the rules of international law of war and international humanitarian law). They are incorporated in the Judgments of the Nurnberg and the Tokyo Tribunal, and are also known as criminal offences under general international law (or crimina iuris gentium).
The following criminal offences can be placed in this category: 1) crime against peace, 2) war crimes, 3) genocide and 4) crime against humanity.
In legal theory36, there are opinions suggesting that these criminal offences should be referred to as international crimes stricto sensu that are prohibited by cogent rules of international law such as The Hague or The Geneva Conventions. The following features of crimes against humanity in the broader sense (core crimes) are pointed out in legal theory: 1) these international crimes have double-layered nature. Their commission draws the following consequences: a) individual criminal liability either of a perpetrator or of an accomplice, or of a superior (on the grounds of superior liability) on one hand and b) the responsibility of a state under international law, on the other, 2) international crimes violate essential (fundamental) human rights and they are, therefore prohibited as repression against the same crimes committed by the opposite party, 3) international crimes are not subject to limitations on criminal prosecution and limitations on enforcement of penalty and 4) general international law imposes as an erga omnes obligation on the states not to breach the basic rules that prohibit these acts37.
The crime against humanity and the nurnberg law
In its 6th paragraph, Statute of the International Military Tribunal, adopted in pursuance of the London Agreement signed on August 8th 1945 by the Governments of the Allies, defines crimes against international law whose perpetrators shall be convicted by the tribunal, either as individuals or as members of an organization. It includes38: 1) crimes against peace, 2) war crimes and 3) crimes against humanity.
Together with direct perpetrators of these crimes against international law, leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible as well. Actually, this refers to liability and punishment of accomplices under the accessory principle of subjective criminal liability. According to paragraph 27.and 28.of the Statute, the following punishments can be imposed on the offender39: 1) capital punishment, 2) or such other punishment as shall be determined by the Tribunal to be fair and 3) confiscation or deprivation of any stolen property.
Crime against humanity was determined for the first time in paragraph 6.subpart 2 of The Statute of The International Military Tribunal. It includes the following acts40: 1) murders, 2) extermination, 3) enslavement, 4) deportation and 5) other inhumane acts.
Crime against humanity demands the presence of two more elements: 1) the fact that the act was committed against any civilian population and 2) that it was committed in certain times- before or during the war. Any persecutions based upon political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated are also considered as crimes against humanity.
Such perpetration literally disables and aggravates living of entire groups of people (members of a political, racial or religious group), not only during but also previous to the war. Although the Statute does not mention it explicitly, this criminal offence actually constitutes the crime of genocide. This was the only criminal offence within the jurisdiction of International Military Tribunal that could be committed regardless of war or armed conflict.
The crime against humanity and Control Council for Germany Law No. 10
Control Council for Germany Law No. 10 dedicated to the punishment of persons guilty of war crimes, crimes against peace and against humanity recognizes the same criminal offences in its paragraph 2., but, besides the three abovementioned types of crime, it also includes a particular criminal offence comprised of the very membership in categories of a criminal group or organization declared as criminal by the International Military Tribunal.
In subpart 2. of this paragraph The Law specifically determined that the following persons can be punished for these crimes41: 1) any person without regard to nationality or the capacity in which he acted if he was a principal or an accessory to the commission, 2) any person who ordered or abetted the same or took a consenting part therein, 3) any person who was connected with plans or enterprises involving the commission of the crimes, 4) any person who held a high political, civil or military position in Germany or in one of its Allies, cobelligerents or satellites and 5) any person who held high position in the financial, industrial or economic life of any of those countries.
According to subpart 3.of this paragraph, for any of these crimes one or more of the following punishments may be imposed on the perpetrator: 1) capital punishment, 2) imprisonment for life or a term of years, with or without hard labor, 3) fine, and imprisonment with or without hard labor, in lieu thereof , 4) forfeiture of property, 5) restitution of unlawfully acquired property and 6) deprivation of some or all civil rights.
35 O.Triffterer, Acts of violence and international criminal law, Hrvatski ljetopis za kazneno pravo i praksu, Zagreb, No. 2, 1997. pp. 811-832.
36 B.Petrovic, D.Jovasevic, Medunarodno krivicno pravo, Sarajevo, 2010. pp.103-105.
37 V.B.Degan, B.Pavisic, Medunarodno kazneno pravo, Zagreb, 2005. pp.186-187.
38 Lj.Prljeta, Zlocin protiv covecnosti i medunarodnog prava, Beograd, 1992. pp.35-46.
39 R.H.Jackson, The case the nazi war criminals, New York, 1946. pp. 18-32.
40 D.Jovasevic, Medunarodno krivicno pravo, Nis, 2011. pp.221-223.
41 Lj. Prljeta, Zlocin protiv covecnosti i medunarodnog prava, Beograd, 1992. pp. 47-53.
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The crime against humanity according to The Statute of the Hague Tribunal
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 was adopted upon Security Council Resolution S/RES/827 from 25 May 1993. The Statute (known as The Hague Statute) recognizes 4 types of crimes against international law. These are: 1) grave breaches of the Geneva Conventions of 1949, 2) violations of the laws or customs of war, 3) genocide and 4) crimes against humanity. Imprisonment is the only penalty that can be imposed by the Tribunal, and in determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia, taking at the same time into consideration the gravity of the offence (objective circumstances) and the individual characteristics of the convicted person (subjective circumstances). In addition to imprisonment, the following sanctions may be also imposed: 1) return of any property to the rightful owners (restitution) and 2) confiscation of any proceeds acquired by criminal acts.
Crime against humanity, also known as the gravest criminal offence of today or the “crime above all crimes”, is described in paragraph 5.of The Hague Statute. The practice of the Hague Tribunal has not accepted the extensive interpretation of this crime, which would include the intention to destroy national, linguistic, religious, cultural or any other identity of a group without its physical extermination. However, the Hague Statute is familiar with another grave criminal offence whose characteristics and attributes make it similar to the crime of genocide. It is crime against humanity. This criminal offence is found in paragraph 5.of the Hague Statute.
The description of this crime against international law clearly states that it can be committed only within an armed conflict (either international or internal in character) and directed only against civilian population, if including42: 1) murder, 2) extermination, 3)
enslavement, 4) deportation, 5) imprisonment, 6) torture, 7) rape, 8) persecutions on political, racial and religious grounds and 9) committing other inhumane acts.
The abovementioned acts ought to be committed under the following circumstances in order to constitute crime against humanity43: 1) an attack has to be committed-an attack can take place even when armed force has not been used, as long as it includes maltreatment of the civilian population or preparations for such acts, 2) criminal offences committed by the accused have to be a part of that attack, 3) the attack has to be directed against any category of the civilian population, 4) the attack has to be either extensive or systematic. An attack is considered as extensive when being of a wide-spread nature or when being directed against a large number of persons. An attack is described as systematic if the violent acts are committed in an organized manner or with slight probability of being committed accidentally and 5) the perpetrator has to be familiar with (aware of) the fact that his acts are committed within an extensive or systematic attack against civilian population.
The crime against humanity according to The Statute of The International Criminal Tribunal for Rwanda
Criminal offences against international law, prescribed by The Statute of The International Criminal Tribunal for Rwanda, and their features and characteristics are the same as those included in the Hague Statute. The Statute of The International Criminal Tribunal for Rwanda was adopted by The UN Security Council Resolution 955 from 8 November 1994. This tribunal has jurisdiction over persons responsible for genocide and other grave violations of international humanitarian law committed in the territory of Rwanda as well as over Rwandan citizens who committed such crimes in the territory of neighboring States during 1994. Since, according to the interpretation of The UN Security Council, there was no armed conflict in this case, this Tribunal has jurisdiction neither for the criminal offence comprised of “grave breaches of the Geneva Conventions of 1949” nor for “violations of the laws or customs of war”.
To be exact, the Statute (known as The Statute of The Rwanda Tribunal) is familiar with three types of crimes against international law. These are44: 1) genocide (paragraph 2), 2) crime against humanity (paragraph 3), 3) crime comprised of serious violations of paragraph 3 common to the Geneva Conventions from 1949, and of Additional Protocol II thereto from 1977 (paragraph 4).
The Tribunal may impose only one type of punishment on the perpetrator of these criminal offences, which is imprisonment appearing in two forms : 1) as a term of life imprisonment and 2) as imprisonment for a specified number of years. In determining the terms of imprisonment, the Trial Chambers of the Rwanda Tribunal is obliged to take in consideration the gravity of the criminal offence committed (objective circumstances) and the personal characteristics of the accused (subjective circumstances). In addition to imprisonment, two measures can be imposed on the perpetrator: 1) the return of any property to the rightful owners (restitution) and 2) the confiscation of proceeds acquired by criminal conduct.
The gravest criminal offence of today-genocide is prescribed in paragraph 2 of the Rwanda Tribunal Statute. It consists of intentional extermination45, in whole or in part, of a national, ethnical, racial or religious group. Another grave crime against international law, prescribed in The Statute, is “crime against humanity” (or crime against the human family). This criminal offence represents a crime against international law and is prescribed in paragraph 3 of the Rwanda Statute. It is explicitly highlighted in the description of this criminal offence that it can be committed only against the civilian population during an armed conflict if consisting of the following acts46: 1) murder, 2) extermination, 3) enslavement, 4) deportation, 5) imprisonment, 6) torture, 7) rape, 8) persecutions on political, racial and religious grounds and 9) committing other inhumane acts.
In order to constitute crime against humanity, the acts enumerated by The Statute ought to be committed under the following circumstances: 1) there has to be an attack-an attack is conducted even if no armed force has been used provided that the civilian population has been maltreated or if such acts have been prepared (planned), 2) the acts of the accused need to be committed as a part of such attack, 3) the attack has to be directed against any category of the civilian population, 4) the attack must be widespread or systematic. An attack is widespread if being of extensive nature or when being directed against a large number of persons. A systematic attack refers to the organized character of the violent acts with slight probability that it occurred accidently and 5) the perpetrator has to be aware of the fact that his acts are committed within a widespread or systematic attack directed against the civilian population.
The crime against humanity according to the Rome Statute
Rome Statute of International Criminal Court, adopted on OUN diplomatic conference that took part in Rome on July 17. 1998, states that the court will exercise jurisdiction over conducting criminal procedure, determining criminal liability and imposing criminal sanctions on persons who have committed crimes recognized as the most serious by the international community as a whole.
Paragraph 5. of the Statute proclaims the jurisdiction of the Court with respect to the following crimes47: 1) the crime of genocide, 2) crimes against humanity, 3) war crimes and 4) the crime of aggression. According to paragraph 77, the Court may impose one of the following penalties on the perpetrator of some of these criminal offences: 1) imprisonment for a specified number of years, which may not exceed a maximum of 30 years, 2) a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, 3) a fine under the criteria provided for in the Rules of Procedure and Evidence and 4) a forfeiture of proceeds, property and assets derived directly or indirectly from the crime committed.
42 D.Jovasevic, KriviCno pravo, Posebni deo, Beograd, 2014. pp.317-318.
43 D.Jovasevic, Medunarodno krivicno pravo, Nis, 2011. pp.89-92.
44 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010. pp. 233-237.
45 The extermination (destruction) of a group stands for physical destruction and does not include the destruction of its cultural being.
46 D.Jovasevic, Krivicno pravo, Posebni deo, Beograd, 2014. pp.318-321.
47 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010. pp. 239-250.
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Paragraph 7 of the International Criminal Court Statute is dedicated to crime against humanity. The Rome Statute makes distinction between this criminal offence and the crime of genocide, although in the times when crime against humanity entered the system of international incriminations, there were standpoints in legal theory that treated these two terms as identical.
Crime against humanity includes acts committed as a part of a widespread or systematic attack48 directed against any civilian population49. For the purpose of this criminal offence, an attack can consist of the following acts: 1) murder, 2) extermination, 3) enslavement- the exercise of the powers attached to the right of ownership over a person, 4) deportation or forcible transfer of population-forced displacement of the persons from the area in which they are lawfully present, 5) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, 6) torture - the intentional infliction of severe pain or suffering, whether physical or mental, upon a person deprived of liberty, 7) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of, 8) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law- deprivation of recognized fundamental rights of a group, 9) causing disappearance of persons (enforced disappearance of persons), 10) the crime of apartheid- inhumane acts committed in the context of an institutionalized regime and 11) other inhumane acts intentionally causing great suffering, or serious danger to mental or physical health.
The crime against humanity according the criminal law of the Republic of Serbia
Chapter 34 of the Criminal Code of The Republic of Serbia contains the following “genuine” crimes against international law50: 1) genocide (paragraph 373), 2) crime against humanity (paragraph 371), 3) war crime against civilian population (paragraph 372), 4) war crime against the wounded and sick (paragraph 373), 5) war crime against prisoners of war (paragraph 374) and 6) organizing and Incitement to Genocide and War Crimes (paragraph 375).
The word “genocide”51 is a compound, created from a Greek word genos, meaning nation or tribe, and a Latin word caedes, which means killing or slaughter (massacre). When translated literally this word stands for the extermination of an entire nation or tribe. Genocide was proclaimed as “a crime against international law, which is in contradiction with the spirit and the aims of the OUN and condemned by the entire civilized world” by OUN General Assembly Resolution 96/1 from 11 December 194652. In spite of the fact that it initially emerged as a "subspecies of crime against humanity'', genocide rapidly obtained autonomous status and contents as one of the most serious crimes of today. Nowadays, it is also called “the crime above all crimes”. As a crime against international law, genocide is determined by three elements: 1) the objective component - actus reaus, 2) the subjective component - Mens rea and 3) the subject of the act - the victim (the group).
The source of this incrimination is found in Convention on the Prevention and Punishment of the Crime of Genocide from 1948, which defines the contents and the elements of this crime against international law. In legislation, theory and practice this term has a more extensive interpretation. Namely, this expression includes not only killing but also extermination, committed in any other way, of a particular group that forms a consistent entity based upon national, ethnical, racial or religious foundation. The subject of protection includes humanity and international law.
Crime against humanity53, defined in paragraph 371. of The New Criminal Code of the Republic of Serbia (2005)54, represents a newly introduced criminal offence55 whose establishment is related to the Statute of The International Military Tribunal from 1945 and the Nurnberg Judgment56. It is a serious crime against international law that threatens characteristic values of the entire mankind, or values that are considered as generally humane. The development of the concept of crime against humanity was predominantly influenced by the idea of the need to protect fundamental human rights and freedoms.
Crime against humanity (crimen iuris gentium) is based upon violations of fundamental laws of humanity, i.e. each person’s right to life and the right of each ethnical group to exist as such.
Accordingly, the acts in question are directed against the conditions that are essential for the survival of a human being, individual human groups and mankind as a whole. Therefore, legal theory points out the following elements of crimes against humanity57:1) the latter are considered as particularly abhorrent violations that seriously offend human dignity and cause humiliation of one or several persons, 2) these crimes are not isolated or sporadic cases, but are committed as a part of certain state government’s politics or as an extensive or systematic practice, which is tolerated, pardoned or accepted, either by the official government or by the unofficial (de facto) regime, 3) the acts in question are prohibited and punishable whether committed in war or in peace and 4) the victims of this crime can be the civilians, or, if committed during an armed conflict, persons who do not participate or who no longer participate in the conflict, as well as the combatants of the opposite party, in accordance with the international customary law.
This criminal offence is committed if a person, in violation of the rules of international law, as part of a wider58 and systematic59 attack against civilian population60orders or commits: murder, inflicting on the group conditions of life calculated to bring about its complete or
48 It is deemed that such attack consists of the attack committed within the state’s politics or in order to complete the aims of some other organization. The attack does not necessarily have to be of military nature. This criminal offence can be perpetrated in times of war as well as in times of peace. Consequently, isolated and individual attacks are not covered by this incrimination.
49 The victim of this crime is not an individual person, but the entire mankind.
50 D.Jovasevic, KriviCno pravo, Posebni deo, Beograd, 2014. pp.322-336.
51 B.Petrovic, D.Jovasevic, Krivicno (kazneno) pravo II, Posebni dio, Sarajevo, 2005. pp.39-45.
52 Official gazette of the SFR Yougoslavia No. 56/1950.
53 A.Kaseze, Medunarodno krivicno pravo, Beograd, 2005. pp. 115-118.
54 Official Gazette of the Republic of Serbia No. 85/2005, 88/2005, 107/2005, 72/2009 and 111/2009. More : D.Jovasevic, Krivicni zakonik Republike Srbije sa uvodnim komentarom, Beograd, 2007.
55 Previous absence of this incrimination has been justified by the fact that it has been covered by the crime of genocide, but contemporary practice related to the civil war on the territory of former Yugoslavia indicated that some crimes against the civilian population cannot be treated as genocide since not being aimed to destroy, in whole or in part, a national, racial, religious or ethnical group, whereas the time of their perpetration does not allow them to be considered as war crimes against the civilian population. .
56 It is assumed that one of the first judgments dealing with crime against humanity is the judgment of The Special Court of Cassation of Holland from 1949, saying that the characteristics of the crimes of this category include gravity and ferociousness, large extensions, the fact that they represent a part of the system aimed to spread terror or a link in politics deliberately conducted against some groups of population
57 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010. pp.263-268.
58 The term “wider attack” should be interpreted as the fact that the armed conflict is taking place on a broader territory.
59 The term “systematic attack” should be interpreted as a planned attack, on which an arrangement has previously been achieved and certain directions given. The plan can be incorporated in a broader military or political plan, but can also be related to particular operations.
60 The attack directed against the civilian population signifies the behavior that includes repeated perpetration of the acts enumerated in the law against any civilian population, on the grounds or with the aim of certain state’s politics or the politics of an organization to commit such attack.
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partial extermination61, enslavement, deportation, torture, rape, forcing to prostitution, forcing pregnancy or sterilization aimed at changing the ethnic balance of the population, persecution62 on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information on such acts in order to deny such person legal protection, oppression of a racial group or establishing domination or one group over another, or other similar inhumane acts that intentionally cause serious suffering or serious endangering of human health.
The subjects of protection are humanity and international law.
The subject of the attack is the civilian population, i.e. members of the entire non-combating population regardless of their citizenship, who found themselves on the occupied territory or territory under the regime of the opposite party. Although this criminal offence is committed by conducting certain acts against individuals, its aim is not to eliminate those individuals as particular persons but to contribute to the conduction of a wider or systematic attack directed against the entire civilian population63. Accordingly, the intent is to destroy (exterminate) the entire or the majority of the civilian population, whereas the elimination of individuals represents only a means of accomplishing this intent. Namely, it refers to acts repeatedly committed against civilians on grounds of or with the intent to realize particular state’s politics or the politics of a certain organization (e.g. a political party or similar organization). The aim of this incrimination is to ensure every person’s right to life along with providing respect of fundamental human rights and freedoms64.
The criminal act is comprised of a series of diverse acts that can be divided into several categories: 1) Killing another person-murder, 2) Inflicting on the population or its part conditions of life calculated to bring about its complete or partial extermination65, 3) Enslavement or compulsory deportation of the population, 4) Torture, 5) Raping, forcing to prostitution, forcing pregnancy or sterilization aimed at changing the ethnic balance of the population, 6) Persecution66 grounded on political, racial, national, ethical, cultural, sexual or other grounds, 7) Detention or abduction of persons without disclosing information on such acts in order to deny such person legal protection, 8) Oppression of a racial group or establishing domination or one group over another and 9) Other similar inhumane acts that intentionally cause serious suffering or seriously endanger human health
The criminal act can be perpetrated in two ways: 1) by ordering and 2) by directly committing the act. Giving order to commit the previously mentioned acts represents a particular and an autonomous act of crime against humanity. In general, ordering represents a form of incitement. However, in this case it is not treated as complicity, but as a special way to commit this criminal offence. This criminal offence is usually committed in an organized and systematic manner in accordance with a previously designed plan, giving a special power to the order of a superior, which causes the autonomous nature of its criminal responsibility. To be exact, the superior will be responsible for having ordered crime against humanity to be committed even if the subordinate refused or in any other way avoided to obey such order67.
It is essential for the criminal act that one or more acts are committed repeatedly68: 1) by violating rules of international law and therefore unlawfully, which the perpetrator has to be aware of and 2) as part of a wider and systematic attack directed against any part of civilian population.
According to the grammatical interpretation of this paragraph, one might conclude that this criminal offence can be committed only during an armed conflict („within the attack“), which is incorrect. It is more appropriate to assume that crimes of this kind can be committed during as well as after the armed conflict, as long as the criminal acts are being perpetrated in the context of wider or systematic attack directed against the civilian population.
The consequence of the act emerges as an injury or as the deprivation of fundamental human rights and freedoms of the civilian population. It can be completed by causing a smaller or a larger amount of individual consequences. The number of individual consequences does not influence the existence of the criminal offence, but has an impact on the determination of punishment.
Any person can be the perpetrator of this criminal offence, and, when guilt is concerned, direct premeditation is required.
The punishment prescribed for this criminal act is minimum five years’ prison or thirty to forty years’ prison.
The New Criminal Code of the Republic of Serbia from 2005 explicitly points out that this criminal offence is not subject to limitations on criminal prosecution and limitations on enforcement of penalty.
Conclusion
International criminal law, as a system of legal regulations found in acts of the international community and criminal legislations of individual states, establishes criminal liability and punishments for crimes against international law. These acts represent breaches of the laws and customs of war (international humanitarian law) that violate or threaten peace among nations and the security of mankind. Penalties prescribed for these criminal offences stand for the most severe penalties in contemporary criminal legislation. In some cases, international judiciary (supranational) institutions such as The Nurnberg and The Tokyo Tribunal, The Hague Tribunal, The Rome Court etc. have primary jurisdiction over perpetrators of these criminal offences. Due to its significance, nature and character, the crime above all crimes stands out among all the crimes against international law. It is the crime against humanity.
Crime against humanity (crimen iuris gentium) is based upon violations of fundamental laws of humanity, i.e. each person’s right to life and the right of each ethnical group to exist as such. Accordingly, the acts in question are directed against the conditions that are essential for the survival of a human being, individual human groups and mankind as a whole. Therefore, legal theory points out the following elements of crimes against humanity : 1) the latter are considered as particularly abhorrent violations that seriously offend human dignity and cause humiliation of one or several persons, 2) these crimes are not isolated or sporadic cases, but are committed as a part of certain state government’s politics or as an extensive or systematic practice, which is tolerated, pardoned or accepted, either by the official government or by the unofficial (de facto) regime, 3) the acts in question are prohibited and punishable whether committed in war or in peace and 4) the victims of this crime can be the civilians, or, if committed during an armed conflict, persons who do not participate or who no longer participate in the conflict, as well as the combatants of the opposite party, in accordance with the international customary law.
61 Extermination includes deliberately imposing such conditions, especially deprivation of access to food and medicaments, which can cause the destruction of a part of the population.
62 The persecution can be related to any group of people or community on political, racial, national, ethnical, cultural, religious, sexual, or other grounds, which is universally recognized as unacceptable in international law with regard to any criminal act. This situation includes deliberate and severe deprivation, or denial of fundamental human rights and freedoms due to the membership in a particular group of people or community, which is in contradiction with international law.
63 D.Radulovic, Medunarodno kriviCno pravo, Podgorica, 1999. pp.115-120.
64 Lj. Lazarevic, B.Vuckovic, V.Vuckovic, Komentar Krivicnog zakonika Crne Gore, Cetinje, 2004. pp.1021-1025.
65 Extermination includes deliberately imposing such conditions, especially deprivation of access to food and medicaments, which can cause the destruction of a part of the population.
66 The persecution can be related to any group of people or community on political, racial, national, ethnical, cultural, religious, sexual, or other grounds, which is universally recognized as unacceptable in international law with regard to any criminal act. This situation includes deliberate and severe deprivation, or denial of fundamental human rights and freedoms due to the membership in a particular group of people or community, which is in contradiction with international law.
67 B.Pavisic, V.Grozdanic, P.Veic, Komentar Kaznenog zakona, Zagreb, 2007. pp.428-431.
68 M.Simovic, M.Blagojevic, Medunarodno krivicno pravo, Banja Luka, 2007. pp.130-135.
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This criminal offence (inclusion international criminal law and criminal law of the Republic of Serbia) is committed if a person, in violation of the rules of international law, as part of a wider and systematic attack against civilian population murders or commits: murder, inflicting on the group conditions of life calculated to bring about its complete or partial extermination, enslavement, deportation, torture, rape, forcing to prostitution, forcing pregnancy or sterilization aimed at changing the ethnic balance of the population, persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information on such acts in order to deny such person legal protection, oppression of a racial group or establishing domination or one group over another, or other similar inhumane acts that intentionally cause serious suffering or serious endangering of human health.
References
1. Degan, V.B., Pavisic, B. (2005). Medunarodno kazneno pravo. Zagreb. Narodne novine.
2. Jackson, R.H. (1946). The case the nazi war criminals. New York.
3. Jovasevic, D. (2007). Krivicni zakonik Republike Srbije sa uvodnim komentarom. Beograd. Sluzbeni list.
4. Jovasevic, D. (2010). Medunarodna krivicna dela - odgovornost i kaznjivost. Nis. Pravni fakultet.
5. Jovasevic, D. (2011). Leksikon krivicnog prava. Beograd. Sluzbeni glasnik.
6. Jovasevic, D. (2011). Medunarodno krivicno pravo. Nis. Pravni fakultet.
7. Jovasevic, D. (2014). Krivicno pravo. Posebni deo. Beograd.Dosije.
8. Kaseze, A. (2005). Medunarodno krivicno pravo. Beograd. Beogradski centar za ljudska prava.
9. Lazarevic, LJ., Vuckovic, B., Vuckovic, V. (2004). Komentar Krivicnog zakonika Crne Gore. Cetinje.Obod.
10. Official Gazette of the Republic of Serbia No. 85/2005, 88/2005, 107/2005, 72/2009 and 111/2009.
11. Official gazette of the SFR Yougoslavia No. 56/1950.
12. Pavisic, B., Grozdanic, V., Veic, P. (2007). Komentar Kaznenog zakona. Zagreb. Narodne novine.
13. Petrovic, B., Jovasevic, D. (2005). Krivicno (kazneno) pravo II. Posebni dio. Sarajevo. Pravni fakultet.
14. Petrovic, B., Jovasevic, D. (2010). Medunarodno krivicno pravo. Sarajevo. Pravni fakultet.
15. Prljeta, Lj. (1992). Zlocin protiv covecnosti i medunarodnog prava. Beograd. Sluzbeni list.
16. Radulovic, D. (1999). Medunarodno krivicno pravo. Podgorica. Kultura.
17. Simovic, M., Blagojevic, M: (2007). Medunarodno krivicno pravo.Banja Luka. Pravni fakultet.
18. Triffterer, O. (1997). ‘’Acts of violence and international criminal law’’. Hrvatski ljetopis za kazneno pravo i praksu. Zagreb. No. 2.
Jovasevic,D.\ Ilievski,A.2, Aleksic,S.3 Ugrinovska,E.4
'PhD of law, 2Prof. PhD of law, 3Master, 4Master,
'Faculty of law, University of Nis, Republic of Serbia 2ISU “G.R.Derzavin”- Sv.Nikole, R.Macedonia, 3Attorney of Nis, 4National
Examination Center, R.Macedonia
THE CRIME OF GENOCIDE IN THEORY AND PRACTICE OF CRIMINAL LAW OF REPUBLIC OF SERBIA
Abstract
International criminal law, as a system of legal regulations found in acts of the international community and criminal legislations of individual states, establishes criminal liability and punishments for crimes against international law. These acts represent breaches of the laws and customs of war (international humanitarian law) that violate or threaten peace among nations and the security of mankind. Penalties prescribed for these criminal offences stand for the most severe penalties in contemporary criminal legislation. In some cases, international judiciary (supranational) institutions such as The Nurnberg and The Tokyo Tribunal, The Hague Tribunal, The Rome Court etc. have primary jurisdiction over perpetrators of these criminal offences. This criminal offence means the killing of a nation or a tribe. Genocide was proclaimed as "a crime under international law, which is in contradiction with the spirit and the aims of the OUN and condemned by the entire civilized world" by UN General Assembly Resolution 96/I from 11 December 1946. Although it emerged as a "subspecies of crime against humanity", genocide rapidly obtained an autonomous status and contents as one of the most serious crimes of today. As a crime against international law, genocide is determined by three elements: a) the objective component- actus reaus b) the subjective component- Mens rea c) the subject of the act-the group-the victim. The source of this incrimination is found in Convention on the Prevention and Punishment of the Crime of Genocide from 1948, which, in paragraph 2, defines the term and the elements of this crime against international law. In legislation, theory and practice, this term can be interpreted in the broader sense, as well. In this paper the author has analyzed theoretical and practical aspects of genocide in international criminal law and criminal law of Republic of Serbia (former FR Yugoslavia).
Keywords: international law, humanity, crime, genocide, court, responsibility, penalty.
Crimes against international law
1. The notion and characteristics of international crimes
In the legal system of the Republic of Serbia, crimes against international law are enumerated in the Chapter Thirty Four of The Criminal Code69 from 2005., entitled “Criminal Offences against Humanity and Other Rights Guaranteed by International Law”. These criminal offences actually represent acts that constitute violations of international treaties, agreements and conventions and threaten and entrench on peace among nations, the security of mankind and other values protected by the international law or are in breach of the rules of war related to the treatment of war prisoners, wounded, sick and civilians by the parties to the conflict.
The origination of these criminal offences is related to the establishment of international rules organizing relations between states in time of war and relations between the parties to the conflict in view of commencement and conduction of armed conflict. International law of war emerged as the consequence of cruel and inhumane comportment throughout the long history of wars and armed conflicts between nations and states, with the intention to humanize this most inhumane means of resolving international and inter-state disputes70.
Along with the expansion of the international law of war, started the process of gradual limitation of the rights belonging to the parties to the conflict, and of controlling not only the acts committed against non-combatants, but those related to the commencement and conduction of war as well. State’s right of absolute freedom to commence and conduct a war will gradually be reduced by prohibiting certain acts that include unnecessary devastation, killing and torture. Breaches of the laws and customs of war constitute crimes under the laws of war. Having accepted international obligations by signing and ratifying numerous international conventions, certain states included several criminal offences against humanity and other rights guaranteed by international law in their criminal legislation. Such criminal offences are committed by violating rules contained in international conventions. Their source lays in the prohibitions proclaimed in international legal documents (acts)71 72.
Subject of protection under international criminal law consists of humanity and other universally recognized and generally accepted values protected by international law. The protection of humanity pertains to the protection of essential human rights such as: life, physical
69 Official journal of the Republic of Serbia No. : 85/2005, 88/2005, 107/2005, 72/2009 i 111/2009. More : D.Jovasevic, Krivicni zakonik Republike Srbije sa uvodnim komentarom, Beograd, 2007.
70 D.Jovasevic, Krivicno pravo, Posebni deo, Beograd, 2014. pp.305-311.
71 S.Zadnik, Kaznena djela protiv vrijednosti zasticenih medunarodnim pravom i novine u zakonodavstvu u svezi sa tim djelima, Hrvatska pravna revija, Zagreb, No. 12, 2003.pp.83-86.
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